The Rogue Court vs Modern Democracy

America can accept this Supreme Court as legitimate and its rulings as the final word - or it can have true democracy and a functioning state. But not both.

It was a disastrous week for all those who would prefer to live in a multiracial, pluralistic democracy with a functional government able to handle the challenges of modern life.

After some better-than-expected rulings that reignited talk of a “moderate” conservative Court exercising restraint, the reactionary majority left the worst for last. The Supreme Court ended its term with a flurry of decisions that thoroughly undermine the drive towards egalitarian democracy and the ability of the state to tackle the most urgent collective actions problems of the twenty-first century.

The (stupid) legend of the 3-3-3 Court

It’s worth reflecting a little bit on the trajectory of this 6-3 Court. Two years ago, it ended the 2021 term – the first in the current constellation with six rightwing judges, after Amy Coney Barrett had succeeded Ruth Bader Ginsburg in October 2020 – with noticeable restraint: no earth-shaking decisions, no attempts to unravel the “liberal” status quo. Had the fear of the new conservative supermajority on the High Court been overblown?

For most serious observers, the obvious explanation for how the Court conducted itself in 2021 was that the rightwing majority, faced with a riled-up public, acted cautiously for tactical reasons. Remember that the 6-3 constellation was the result of several questionable – to use a wonderfully euphemistic term – actions by Republicans. After the death of Ruth Bader Ginsburg in September 2020, Republicans insisted on putting Amy Coney Barrett on the Court in record time – even though there were less than 40 days between her nomination and the presidential election in early November. This was a remarkable move, considering that Republicans had refused to even hold hearings for Merrick Garland, who president Obama had nominated in March 2016 to succeed Antonin Scalia. Such a far-reaching decision, Mitch McConnell – ever the tribune of the people! – argued at the time, should not be made in an election year and should instead be left to the next president. After blocking the process for almost a year, Republicans ultimately got Trump to the White House, who immediately nominated Neil Gorsuch. But two years later, in the fall of 2020, Republicans were entirely comfortable to ignore their own bad-faith rational for why they sabotaged Barrack Obama’s pick. It must be considered the least surprising development in recent political history In-between Gorsuch and Coney Barrett, they had already insisted on placing Brett Kavanaugh on the Court in 2018: a man credibly accused of sexual assault, which only strengthened the resolve of Republican lawmakers – upstanding Christian patriots and defenders of family values, all of them – to close ranks behind him.

Gorsuch, Kavanaugh, Barrett – all three of them hand-picked by the Federalist Society, of course, to insure their impeccable “conservative” credentials, meaning they are reactionaries who can be relied upon to drag the Court significantly to the Right. All three nominated by a president who had lost the popular vote – and after January 6, 2021, by a president who had attempted a self-coup that would have ended democracy and constitutional government in the United States.

So stark, so crass, so bizarre was the discrepancy between the pretensions of democracy and the reality of minority dominance, between the norms of the political process and a reality in which Republicans displayed zero interest in forbearance, between the ideal of nonpartisanship the Court always claims for itself and the reality of a brutal rightwing power grab, that for a while, even the Democratic establishment seemed to agree that something had to change. Court reform, expanding the Court, restricting judicial review… the contours of what, exactly, should be done remained fuzzy. But it was enough to put some pressure on the Court’s conservative majority: A credible threat – and a big part of why the 2021 term ended in restraint. The Right had decided it was better to keep a low profile, avoid attracting more criticism, let the storm pass.

And it totally worked. As the full-on assault on fundamental rights and democracy failed to materialize in 2021, mainstream Court coverage quickly reverted back to its idolizing mean and enthusiastically told the people about the most wondrous, most marvelous of creatures: the 3-3-3 Court. A rightwing supermajority? No! Three “conservatives” (Thomas, Alito, and Gorsuch) on the right, three “liberals” (Sotomayor, Kagan, Breyer) on the left – and the most revered figure in American mainstream imagination, the “moderate institutionalist” represented three times (Roberts, Barrett, and Kavanaugh) in the middle. The mythical center was holding after all. It never made any sense, beyond the most superficial layer of pseudo-analysis. But there is a professional machine of Court observers always ready to propagate the legend of the noble, nonpartisan Court, all balls and strikes. The “3-3-3 Court” narrative embodied all the pathologies of the hagiographic mainstream Supreme Court discourse, propelled by journalists whose professional standing depends on access as much as it does on the reputation of the institution which they are supposedly tasked to cover critically, and by legal experts who often have a vested interest not just in making their profession look good in general, but also in building rather than burning bridges to the all-powerful justices on the nation’s highest court.

All that talk about the need for serious reform? It had gotten nowhere – worse than nowhere, actually: it was swallowed up by a presidential commission, established in April 2021 and disbanded eight months later, that predictably produced nothing but a toothless report no one cared about.

But then Dobbs happened, and just like that, the mask had fully slipped, the reactionaries on the Court revealed their true face and stripped roughly half the population of reproductive freedom and the right to bodily self-determination, made them into second-class citizens. And it wasn’t just Dobbs: One year ago, at the end of the 2022 term, the rightwing majority on the Court made it very clear that it wasn’t content with merely allowing Republicans to entrench reactionary rule in red states. The Court also aggressively restricted the ability of blue states to regulate guns, undermined the separation of church and state, and sabotaged the state’s ability to deal with the climate emergency. For anyone not willfully oblivious to what was going in, the decisions of June 2022 made it clear that the 6-3 Court was hellbent on imposing the Right’s vision of what American society should be on the entire country and was relishing in its role as the spearhead of the reactionary counter-mobilization against the drive towards multiracial, pluralistic democracy.

2023: The dangerous myth of “restraint” an “moderation”

But wait a minute, didn’t the Supreme Court just prove, with its latest round of decisions, that such a critique is unfair and that a much more nuanced assessment is in order? It is certainly the case that the 2023 term brought some unexpectedly good news. Over the past few weeks, the Court pushed back against the attempts by red states to undermine Native American sovereignty and reaffirmed Congress’s right to enact laws designed to protect Native American communities from exploitation (in Haaland v Brackeen); it upheld / restored whatever was left of the Voting Rights Act by holding the line against Alabama’s aggressive racial gerrymandering (in Allen v Milligan); and it rejected the “independent state legislature” theory (in Moore v Harper), a completely bonkers idea that was crucial to Trump’s plans to nullify the 2020 presidential election and would have ended democratic self-government in America. These are all victories for multiracial democracy.

The Court is certainly conducting itself differently than last year. The most plausible explanation is not that the conservatives had an epiphany and have magically discovered their love of egalitarian multiracial pluralism (I mean, seriously, come one now). Some of the rightwing justices are clearly aware of the heightened scrutiny and pressure resulting not just from Dobbs and the rest of the disastrous 2022 decisions, but also from recent revelations about the breath-taking levels of corruption that Samuel Alito and Clarence Thomas, especially, have displayed with shocking regularity and complete impunity. The Court’s public approval rating is unprecedentedly low, and this has made it vulnerable to attacks. As a result, John Roberts has evidently been able to convince some of the members of Team Reactionary to revert back ever so slightly to his way of staving off egalitarian democracy – by not destroying, but instead using the Court’s aura of nonpartisanship to their advantage.

Even if it is purely performative and tactical in nature, this kind of restraint still has real consequences and effectively slows down the reactionary project of turning the clock back by many decades. It also proves that public pressure works. And it is evidence of real friction among the reactionary justices. That’s why I don’t think “MAGA justices” is necessarily the most adequate description of the current rightwing majority. Don’t get me wrong, “MAGA Court” is still much, much closer than “moderate Court.” But it suggests that all the rightwing justices are tied to Trumpism, when the two most far-right cranks on the Court are Thomas and Alito, which serves as a reminder that this problem didn’t originate with Trump and isn’t confined to MAGA America. I think it’s more helpful to distinguish between two different camps among the rightwing majority: both are strands of the same reactionary political project and are united in their overriding disdain of the leveling impulses of liberalism, but there are certain internal quarrels and conflicts between them. The anti-liberal majority breaks down to two justices, Alito and Thomas, who just want to put democracy to the torch and take a sledgehammer to the modern state every chance they get; and four justices who are more conscious of the repercussions of going scorched earth at all times and would prefer to pursue the reactionary vision for American society from under the cover of the Court’s aura of nonpartisanship. The latter position entails rejecting cases from extremist Trump judges that are so sloppy, lazy, and dumb that they don’t offer anything in terms of plausible deniability to the rightwing majority on the Court – Roberts, in particular, has been adamant that he will not go with arguments that simply make him look like a fool. It entails some of the “conservative” justices going against their own policy preferences at least sometimes – which is exactly what happened with the unexpectedly good decisions in this term.

This fault line within the reactionary camp in many ways mirrors the key conflict that is defining the Right more broadly: between those who want to uphold white Christian elite rule from within the system and the confines of a narrowly restricted version of white patriarchal democracy – and those who want to pursue that goal by openly embracing authoritarian minority rule and militant extremism. Defenders of multiracial, pluralistic democracy are not to be found in either camp.

That has, of course, not been the tenor in mainstream media coverage for most of this term. By putting the “good” decisions out relatively early and leaving the worst ones for last, Roberts was clearly counting on getting some favorable press and defining the narrative before throwing a few more grenades. And that is exactly what happened, as the Court’s disciples in the media are always willing to oblige. The New York Times, for instance, was eager to laude the Court’s “moderate decision” when it rejected the independent state legislature theory – because apparently, the standard for what counts as “moderate” is now “not abolishing democracy right away based on some ludicrous ideas.”

Once the expectedly generous headlines were in, the rightwing majority on the Court showed its true colors yet again. A few weeks back, the Court had already crippled the EPA’s attempts to enforce the Clean Water Act of 1972 (in Sackett v EPA) and opened the door for a return to the kind of disastrous pollution of rivers, lakes, and wetlands that was common before Congress acted half a century ago, but has become unthinkable since. Then, in the term’s final two days on Thursday and Friday, the Court effectively abolished affirmative action in college admissions based on the ridiculously a-historical idea that the 14^th amendment has to be applied in a “colorblind” way, completely inverting the amendment’s intent; it granted businesses a constitutional right to discriminate against the lgbtq community, based on an entirely hypothetical case of a bigot being distraught over the idea that she might, potentially, be asked to design a website for a gay couple at some point in the future; and it rejected Biden student loan forgiveness plan by applying the “major questions doctrine” – a blunt tool that serves to nullify whatever action by the administration the reactionaries on the Court don’t like.

The contrast between the decisions that had widely been lauded by the pro-democracy camp and these “mask off” rulings is stark: In the former, the Court basically decided to leave the status quo in place rather than to tear it down – none of these cases advanced the country towards becoming a fairer, more democratic society. In the latter, however, the Court actively turned the clock back dramatically.

Imposing traditional hierarchies on the country

All of these rulings have to be seen in the context of the Right’s larger project to uphold traditional hierarchies of race, wealth/class, gender, and religion.   

Samuel Alito’s majority opinion in Sackett v EPA reveals where his actual concern lies: He talks a lot about the horrible plight of the “landowner” who supposedly suffers under the yoke of state tyranny. How dare anyone restrict the right of wealthy elites to exploit the land and its resources in whatever fashion they desire! Here is someone really looking out for the core constituency of the Rights oligarchic vision.    

The Supreme Court’s decision to dismantle affirmative action perfectly captures how conservatives weaponize the idea of “colorblindness” in order to deliberately obscures the distinction between considering race in order to uphold a racially discriminatory system vs. doing it to dismantle that system. Conservatives want a world that combines racially discriminatory structures in all spheres of life with “race-blind” selection processes (like hiring and admission practices) that pretend those structures don’t exist – and then call the result “meritocracy.” They want to “take race out” of the decision-making processes that determine access to avenues of wealth generation and upward social mobility, but not out of any of the systems that define life in America – a very effective way of keeping the status quo intact. The commitment to affirmative action represents an affirmation of multiracial pluralism and rests on an acknowledgment that the traditional dominance of white men was never the result of meritocratic structures, but of a discriminatory system that needs to be dismantled. As a project of hierarchy maintenance, however, the Right is diametrically opposed to any such acknowledgment – it would shatter the very foundation of the conservative political project: the belief in what is supposedly the natural and/or divinely ordained order of things.

In 303 Creative LLC v Elenis, the Court weaponizes free speech and religious freedom to allow discrimination based on identity. The ruling stands in the long tradition of valuing the freedom of conservative white Christians over that of everyone else – of actually defining their freedom as the power to curtail the freedom of others. It is yet another iteration of the eternal quest to defend this white freedom from the onslaught of equality. In blocking student loan forgiveness, finally, the Court sides yet again with the interests of the old over the needs of the young.  

For the Right, these are not distinct questions and rulings. They are all part of the attempt to halt the drive towards egalitarian, multiracial, pluralistic democracy – and roll back whatever progress towards that end has been made over the past century.

This is still the Dobbs Court. It has gone rogue, occasional tactical restraint notwithstanding. The main reason why this Court has lost its legitimacy is not even the way the current majority came to be, it’s not even about all the dirty, cynical Republican machinations that got us here. The Court is illegitimate because of its actions. There is no consistent logic or principle beyond ideologically driven power politics. The idea that those who founded the United States envisioned a super-body composed of unaccountable, all-powerful rulers clad in robes, free to reign entirely outside the structure of institutions that make up the political system, is preposterous. Yes, the constitution insulates the Court from direct democratic control – but that doesn’t mean it can simply turn against democracy itself. The Court isn’t merely protecting the rights of a minority from the tyranny of mob rule; it is spearheading the attempts by a radicalizing minority to install ever more authoritarian forms of minoritarianism in order to secure their status against the will of the majority.

The United States will have to make a decision: It can either continue to respect the legitimacy of this Court and view its decisions as the final word on all matters affecting the polity – or it can have democracy and a functioning state capable of dealing with modern society. But not both.